Human Rights and Social Policy in New Zealand

Article excerpt

Abstract

This article aims to facilitate debate about the implications for New Zealand social policy making of taking a rights-based approach. It does so by exploring the sources and scope of New Zealand's international human rights obligations, particularly in relation to economic, social and cultural rights. It identifies a range of constraints on social policy making deriving from these obligations and suggests that explicit and systematic attention to these constraints constitutes the essence of a rights-based approach to social policy making. Finally, the article comments on the adequacy of existing processes and structures of New Zealand government for giving effect to a rights-based approach and makes some suggestions for how these might be modified.

INTRODUCTION

New Zealand has entered into extensive international commitments with respect to the protection and promotion of human rights. Those commitments are binding on New Zealand as a matter of international law. They encompass both "civil and political" rights (CP rights) and "economic, social and cultural" rights (ESC rights). The latter category in particular has profound implications for social policy.

Over the last few years there has been increased interest from both within and outside government in the impact of human rights on the policy-making process. There is, however, considerable uncertainty about what a rights-based approach to social policy might require. That uncertainty derives in particular from the difficulties that attend any attempt to establish with precision the scope and effect of New Zealand's obligations with respect to ESC rights.

Generally speaking, ESC rights have not been subject to the same extensive degree of standard setting that has attended the international regulation of CP rights and, accordingly, the language in which they are cast is often imprecise (Craven 1995:25-26). As well, the obligation placed on states under Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (the ICESCR) is cast in relative rather than absolute terms. It requires the state to "take steps" to realise the rights "progressively" and "to the maximum of its available resources". As a consequence, the precise extent of the state's obligations with respect to ESC rights is both contestable and controversial. This problem is compounded by the absence of an established tradition of judicial or quasi-judicial elaboration of ESC rights, either in the domestic or the international setting (Chapman 1996:30-31).

In 2003 the Human Rights Commission commissioned the authors, through the New Zealand Centre for Public Law, to produce an issues paper on the implications of applying a rights-based analysis to the development of social policy in New Zealand (Geiringer and Palmer 2003). This article is a revised and abbreviated version of that paper. It aims to facilitate debate about the implications for New Zealand social policy making of taking a rights-based approach.

Following a brief description of the New Zealand social policy environment, the article embarks on a conceptual discussion of what a "human right" is and how a "rights-based" focus might thus differ from a focus on, say, human need. Against that background, the article explores the sources and scope of New Zealand's international human rights obligations as they relate in particular to social policy. The article then develops a particular focus on ESC rights, dissecting the nature of the state's protective obligation under the ICESCR and identifying a range of constraints on social policy, some substantive and some procedural. Finally, the article reviews the adequacy of existing processes and structures of government for giving effect to human rights and makes some suggestions for how these might be modified.

We do not attempt in this article to justify from first principles the legitimacy or utility of using a rights-based framework to conceptualise the state's responsibilities. …